The Rabbi and the Recalcitrant: The Co-Existence of Secular and Religious Court post-Ulman v Live Group Pty Ltd
By Harriet Warlow-Shill
5 March 2019
The court’s decision in Ulman v Live Group Pty Ltd (‘Ulman’) has reiterated the issue of the co-existence of a secular legal system with various religious courts in Australia.
The Ulman case began with a commercial dispute between two observant Orthodox Jews to which the Respondent was a party. The dispute was brought before the Beth Din in Sydney. The Beth Din is a religious court charged with the responsibility of administering the Jewish law (the Halacha). The Respondent refused to appear before the Beth Din, arguing that they did not have jurisdiction to hear the matter.
The Beth Din sought to compel the Respondent to appear by threatening to impose significant religious sanctions against him if he did not submit to their jurisdiction. The Beth Din threatened to use its “resolve” to sanction the Respondent if he took the matter to a secular civil court for adjudication without their permission. This threat was based on passages in the Halacha which uses strong language (such as the quote below) which prohibits Jews from pursuing remedies in civil courts without first consulting a Beth Din.
Whoever submits a suit for adjudication to gentile judges in their courts, even if the judgement rendered by them is in accord with Jewish law, is a wicked man.
-Rambam, Hilchos Sanhedrin, 26, 7
What was the issue?
The Beth Din was charged with contempt of court for threatening the Respondent with religious sanctions. In response to these allegations, the Beth Din argued, among other things, that they could not be held in contempt of court as no civil proceedings pending at the time their threats were made.
What did the court say?
At first instance, the New South Wales Supreme Court held that the Beth Din had acted in contempt of court. This decision was upheld 2-1 by the Court of Appeal. Bathurst CJ and Beazley P held that it is possible to be found guilty of contempt of court notwithstanding the absence of existing proceedings. Their Honours referred to the recent decision in Mirus Australia Pty Ltd v Gage and the earlier decision in Prothonotary v Collins in which it was held that a broader category of contempt exists in which there is a “real and definite tendency to interfere with the administration of justice generally.” This recognises that the administration of justice is an ongoing process and is not dependent on the existence of proceedings at a given time. This is contrary to the traditional interpretation of contempt in which it was necessary to show that there were pending proceedings.
It was an important element in the reasoning behind the majority’s decision that the Beth Din went further than using the threat of sanctions merely to persuade the Respondent to appear before them. The Beth Din’s threats were also used to pressure the Respondent to back down from his assertion that the matter would be better dealt with in a civil court. The majority took issue with a particular statement in an email sent to the Respondent which asserted that “they are not permitted to seek adjudication at a civil court without the express permission of a Beth Din.” This was interpreted as an attempt to assert their exclusive jurisdiction over the dispute to the exclusion of the secular courts. In the words of Bathurst CJ and Beazley P:
“In our opinion, the requirement or demand in the email goes beyond a statement as to what is required or expected of an observant Jew. It was an unambiguous threat that sanctions would be imposed if Mr Barukh [the Respondent] persisted in asserting that the alleged commercial dispute be resolved in a civil court.”
McColl JA, in dissent, disagreed with the majority and held that it had not been proven that the Beth Din sought to deter the Respondent from exercising his right to take the matter to a civil court.
What does this mean for the Religious Court in Australia?
In secular countries like Australia, a religious court is free to administer religious justice and co-exist with civil courts. But the jurisdiction of the religious court is not without limits- where religious law is inconsistent with Australian law, the Australian law will prevail to the extent of the inconsistency. The decision in the Ulman case illustrates this limit as interpreted by Australian civil courts.
It should be noted that the court did not take issue with the threat of religious sanctions per se. Much of the media commentary following the decision expressed concern about the ongoing operation of the Beth Din. In particular, the Beth Din has suggested it will be curtailed in imposing sanctions in cases of Gett refusal, where a husband seeks to hold his wife hostage in an unhappy marriage. But I would hesitate to draw this conclusion. For the Beth Din, the most important take away from the court’s decision is the importance of exercising proper care in ensuring they do not appear to be overstepping their bounds when threatening to impose sanctions. It is my understanding of the case that if the Beth Din were to impose sanctions for non-attendance, then that would be acceptable. In contrast, imposing sanctions for attending a civil court would be contempt of court.
That said, the dissenting opinion of McColl JA is very compelling. Her Honour considered this decision within the wider context of freedom of belief. Her Honour cited the High Court decisions in Attorney General for New South Wales v Grant and Church of the New Faith v Commissioner of Payroll Tax in which it was held that the law recognises a complete freedom of belief in matters of religion but that freedom only extends as far as is permitted by the general laws of the state. Her Honour recognised the importance of balancing religious freedom against an individual’s right to resolve a commercial dispute in a secular court. Her Honour concluded that the latter right had not been impeded by the Beth Din. Given the Respondent’s personal strict adherence to the Halacha, one cannot help but speculate as to the Respondent’s motivations for seeking the assistance of secular courts given what the Halacha has to say about using a Beth Din to resolve a commercial dispute. Nonetheless, the Respondent’s position ultimately does not impact on the outcome of the matter.
The Beth Din has since sought leave to appeal the decision to the High Court. If the matter proceeds, one would hope that the High Court lays to rest any concerns about the ongoing exercise of religious freedom in this country. Regardless of whether the High Court grants leave to appeal, it seems that this decision is a good catalyst to encourage religious and political leaders to engage further and consider whether there is a better way to clarify the boundaries of co-existence of both religious or cultural legal systems with civil courts in Australia. Once this is clarified, it would seem to be a worthy project to create training programs for those operating and administering religious justice programs within Australia so that this unfortunate outcome can be avoided in the future.
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